Lagos – His Lordship, Hon. Justice Nelson C.S. Ogbuanya of the National Industrial Court of Nigeria, sitting in Lagos, Lagos State, on Friday 23rd November 2018 in a judgment awarded the sum of N3, 199,029.00 in favour of BALA MOHAMMED YESUFU (Claimant) to be paid by NIGERIAN BREWERIES PLC (Defendant), being the amount representing three months’ salary wrongly deducted from the computed entitlements while exiting the services of the Defendant in June 2013. The Court further directed the Defendant to take immediate steps to include and incorporate in the Defendant’s HR Policy and Employee Handbook the entitlement conditions and packages for Early Retirement as well as the Exit Notice Period.
The Claimant’s endorsed reliefs are for; The SUM of N5,331,715.00, being amount of money wrongfully deducted by the 1st Defendant (sic) from the sums due to the Claimant under the terms of the Claimant’s employment with the Defendant’s employment at the time of the Claimant (sic) retirement from the Defendant’s employment on June 6, 2013 plus interest at the rate of 3% from June 6, 2013 until the date of payment of the sum of N5,331,715.00 to the Claimant by the Defendant, and The SUM of N12, 000,000.00 representing compensation for opportunities lost and other general damages.
The case of the Claimant is that he joined the services of the Defendant as an Export Services Manager in 1992 and worked for 21 years. That he gave the Defendant notice of his retirement, which the Defendant replied in its letter, confirming that he had met the qualifying age of early retirement, having attained the minimum age of 50 years and served for not less than 20 years.
The Defendant however, pointed that claimant gave only one (1) month out of six (6) months he ought to give, and that sum equivalent to his 5 months’ salary would be deducted from his computed entitlement. That the Defendant did the computation of his severance package and, indeed, deducted the sum of N5, 331,715.00 being deduction for 5 months salary in lieu of early Retirement Notice not served
The Claimant insisted that he is not bound by a practice which has no documentary basis in his contract of employment, While the Defendant based its assertion of 6 months’ notice on an ‘age long policy’ of the Defendant Company policy forming part of the contract of employment.
Defendant Counsel submitted that the process before the court shows that contrary to the provisions of Rules of Professional Conduct, counsel to the Claimant failed to affix his seal to the court processes as well as the pre-action letter that failure to affix a lawyer’s seal to a filed process renders the process null and void.
Counsel further contended that the contract of the employment was not limited to the offer of employment, but also other oral and written documents, as well as the same term as applied to other workers, including circulars, internal memos, etc and relevant collective agreements.
Learned Claimant’s counsel, Olufemi Oguntokun, Esq., in his Final Written Address Urged the court to hold that on the basis of preponderance of evidence led at the trial, it is the offer of employment that governs the employment relationship between the parties, and which provides 3 month notice for termination, out of which the Claimant has given 1 month leaving a balance of two (2) months.
After careful analysis of all the processes filed, and the submissions of the learned Counsel from both sides. The Court presided by Hon. Justice Nelson Ogbuanya expressed thus;
“However, upon review of long line of judicial authorities and pronouncements on the subject, including the Yaki’s case relied on by the learned counsel, I have come to a settled view that the correct legal consequence for failure to affix the NBA stamp is not to render the process/suit a nullity but to make it voidable as irregularity, capable of being regularized, contrary to the submission of learned Defendant’s counsel.
“In the circumstance, I find that there is no evidence of a written policy of the Defendant Company on Early Retirement Notification prior to the Memo dated 20th October 2014.
“I find that there is no comprehensive policy document maintained by the Defendant Company evidencing the key aspects of the Early Retirement Policy, such as Qualifying conditions, Notice period and severance Packages.
In all, the Court awarded the sum of N3, 199,029.00 in favour of the Claimant to be paid by the Defendant, being the sum representing three months’ salary wrongly deducted from the computed entitlements of the Claimant while exiting the services of the Defendant in June 2013 within One (1) month of this Judgment. Otherwise, 10% interest per annum shall accrue on the sum due until finally liquidated.
His Lordship further directed the Defendant to take immediate steps to include and incorporate in the Defendant’s HR Policy and Employee Handbook the entitlement conditions and packages for Early Retirement as well as the Exit Notice Period as expressed in the Memo dated 20th October 2014, Ref.ERM.1222/2285 issued by the Head, Employee Relations.